The several plaintiffs and defendants are owners of separate tracts of land near Grandview, Owyhee county. The lands, being arid, depend for irrigation upon water supplied from artesian wells, eighteen of which are on plaintiffs' lands and three on defendants'. Plaintiffs claim as a prior right to the use of all artesian waters in the district on the theory of priority in appropriation and beneficial use. This action was instituted by plaintiffs to have their respective water rights determined and quieted and to enjoin interference therewith by defendants. Upon motion by plaintiffs, resisted by defendants, the district court issued an injunction pendente lite having the effect of restraining defendants from the use of water from their wells with which to irrigate some twenty-five or thirty acres of their land additionally placed under cultivation. The defendants have appealed from the order granting the injunction and denial of their motion to dissolve the injunction.
The waters used by the parties derive from an underground source, being brought to the surface by means of wells piercing impermeable strata under which the waters are confined at varying depths. Plaintiffs allege, and as a basis of the discussion to follow the facts may be taken to show that the appropriations by plaintiffs of water from their wells practically exhaust the supply, so that if defendants increase the flow of water from their wells with which to irrigate new or additional lands the pressure in plaintiffs' wells will be diminished and the flow from their wells thereby materially decreased. *Page 381
The issue here is clear-cut, viz., whether the artesian waters, the subject of this action, are private waters belonging to the respective owners of the freehold, or are subject to appropriation as public waters under the Constitution and laws of the state.
It is said that subterranean waters are divided into two classes: (1) percolating waters, and (2) underground streams. (Annotation, 55 A.L.R., pp. 1386-1566.)
Definitions and descriptions of percolating waters have been many and varied, such as "those oozing or percolating through the soil in varying quantities and uncertain directions; water flowing, seeping, or circulating beneath the surface of the ground, without banks or defined channels, and whose course is invisible and unknown; those which ooze, seep, or filter through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications, without excavation for that purpose; those which pass through the ground beneath the earth, without defined channels," etc. (Note, 55 A.L.R., p. 1388, and cases cited.)
If the underground water flows in a stream with a well-defined channel, and its existence, location, and course are known or knowable from extraneous facts, then the same rules apply as if the stream were upon the surface. It is well settled that, unless it is shown that the underground water flows in a defined and known channel, it will be presumed to be percolating water. This presumption it is difficult to overcome, as in a great majority of cases the exact condition or course of the underground water is not known, nor readily ascertainable, but the burden of proof is on him who alleges that the water flows in a known and defined channel, and he must lose unless he can overcome the presumption by affirmative proof to the contrary. This onus of proof requires it to be shown that, without opening the ground by excavation, or having recourse to abstruse speculation of scientific persons, men of ordinary powers and attainments would know, or could with reasonable diligence *Page 382 ascertain that the stream, when it emerges into light, comes from, and has flowed through, a defined subterranean channel. (Clinchfield Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308; note, 55 A.L.R. 1376, and cases cited.)
Under the common-law or English rule, percolating waters are regarded as belonging to the owner of the freehold, like the rocks, soil and minerals found there, and such owner may, in the absence of malice, intercept, impede and appropriate such waters while they are upon his premises, and make whatever use of them he pleases, regardless of the fact that his use cuts off the flow of such waters to adjoining lands, and deprives the adjoining land owner of their use. However, this doctrine as to rights in percolating waters has been quite generally modified in this country by later decisions, the courts applying what has been called, variously, the rule of reasonable use, the rule of correlative rights, or the American rule — best expressed by the maxim that one must use his own as not to injure another — that each land owner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others. Thus, where two or more persons own contiguous tracts of land, underlaid by porous material extending to and communicating with them all, which is saturated with water moving with more or less freedom therein, it has been held each has a common and correlative right to the use of this water upon his land to the extent of a reasonable share thereof if the supply is so scant that the use by one will affect the supply of the others. (Hudson v. Dailey, 156 Cal. 617, 105 P. 748; Eckel v.Springfield Tunnel Dev. Co., 87 Cal. 617, 262 P. 425; Katzv. Walkinshaw, 141 Cal. 116, 99 Am. St. 35, 70 P. 663,74 Pac. 766, 64 L.R.A. 236; Kinney on Irrigation and Water Rights, 2d ed., sec. 1192.) In Vanderwork v. Hewes, 15 N.M. 439,110 P. 567, the court expressed the opinion that the rule of reasonable use or correlative rights applied to water in artesian basins or a like place of supply. *Page 383
While there is some authority to the contrary, it may be stated as a general rule that the rules of law applying to the appropriation of surface waters do not apply to waters percolating through the earth without a defined and known channel, and that such waters are not subject to appropriation. (Cases cited, note, 55 A.L.R., p. 1444.) In effect conceding the waters here in controversy are percolating waters, plaintiffs contend they are subject to the doctrine of appropriation and its incidents, the same as public surface waters.
In Le Quime v. Chambers, 15 Idaho 405, 98 P. 415, 21 L.R.A., N.S., 76, the original entryman on unpatented lands consented to the diversion of waters from a spring situated on the homestead, by another. It was held that a subsequent entryman could not interfere with the water right so established, the land being impressed with the burden and servitude of the water right and easement at the time of entry of the second entryman. Several reasons were assigned for such holding, among them that a section of a United States statute (sec. 2339, Rev. Stats. U.S.) expressly assented to the appropriation of such waters on government land and the water right had attached prior to the filing of the second entry, consequently the second entryman acquired his right in and to the land from the United States subject to the prior right of way and water location of the other party, with the consent of the original entryman — the land, upon the cancellation of the first entry, reverting to the public domain and being subject to the rights and claims of the appropriator of the water, and during the time intervening between the cancellation of the first entry and the second entry the rights to the water properly and legally attached under the United States statute. It will be seen there was consent to the appropriation in the first instance, and the water was taken from a spring, at its source, on public land, and the appropriation of such water was expressly authorized by statute; the opinion stating a different *Page 384 question would arise if the land had been privately owned before the appropriation of the water.
Plaintiffs place especial reliance upon the opinion of this court in Bower v. Moorman, 27 Idaho 162, Ann. Cas. 1917C, 99, 147 P. 496, 501, as rejecting the common-law theory as to rights in percolating or underground water, as well as the doctrine of reasonable use or correlative rights. In that case respondents had sunk several artesian wells upon their property which discharged water in various amounts. Appellants purchased an acre of land within 300 feet of respondent's wells, purposing to obtain water in the same manner as respondents, to be used on another tract of land about a mile and a quarter away. After appellants had sunk their well to a depth of about 200 feet, respondents brought suit against them and obtained an order restraining appellants from further prosecuting the work of sinking their well, alleging that in so doing the flow of water in respondents' wells was interfered with and materially lessened. In reviewing the case this court discussed the English or common-law rule governing the right to the use of percolating waters — to the effect, as hereinabove indicated — that percolating waters belong to the owner of the land and may be used as seen fit, without liability to anyone. Then considered was the rule of reasonable use or correlative rights, the opinion saying:
"Where percolating water exists in a state of nature generally throughout a tract of land that has been subdivided, the ownership of which is held in different proprietors, it would seem to be an impossible rule to adopt, whereby each proprietor is given the absolute right to withdraw all of the percolating waters underneath the ground owned by each one, by the driving of wells and installing of powerful pumps, or the withdrawal of the waters in any other manner that might be possible by reason of recent inventions, and thus destroy the benefits made possible by the proper regulation of percolating waters obtained by any of the above methods, for a beneficial use; and an injunction will issue *Page 385 to restrain any permanent interference by an adjacent land owner with the right to the use of subterranean waters acquired by a prior appropriator."
It may be that in the opinion above referred to there is some language which might be taken to mean that the writer was subscribing to the theory that percolating water is subject to appropriation the same as public surface waters or underground streams. What the writer had in mind, however, was the application of the rule of reasonable use or correlative and reciprocal rights, by which each proprietor of a parcel of land, part of a larger tract under which there was percolating water, would not have the absolute right to withdraw all of such water so as to cut off or greatly diminish the supply of others obtaining water from the same source. And this rule would be of particular application where, as in theBower-Moorman case, the later "appropriator" intended to convey the water off the land whence it came, to a distant tract beyond the artesian basin. (Katz v. Walkinshaw, supra.)
The principle was further considered and elucidated inPublic Utilities Com. v. Natatorium Co., 36 Idaho 287,211 Pac. 533, 535. The fact that in that case the artesian waters in question were not the subject of a controversy as between rival claimants does not detract from the conviction of the writer of the soundness of the theory of the rights of the owner of property under which percolating waters are found as therein advanced. Firstly, it was said that C. S., sec. 5556, providing that all waters of the state when flowing in their natural channels, including waters of all natural springs and lakes within the boundaries of the state, are declared to be the property of the state, subject to appropriation, does not include percolating waters. Now, as then, "I am not willing to subscribe to the theory that all waters within the borders of the state, which are found where nature places them, are public waters of the state, the property of the state and solely under the control of the state wherever found. To carry this doctrine to its logical *Page 386 conclusion, the owner of the fee who sinks a well upon his premises and discovers water has but a qualified ownership in the soil, and a limited right only to the use of the water found therein. Any person may condemn a right of way across the owner of the fee's premises to the well and divert the waters of the well not then being used by the owner of the fee, upon the theory that the water placed there by nature is the property of the state and subject to appropriation, for which the owner of the fee is entitled to no compensation except for the right of way. To hold to such theory is going beyond a safe and reasonable interpretation of the constitutional provisions heretofore cited and falls within no reasonable interpretation of the right to appropriate public waters of the state as fixed by the statutes of this state."
As said in King v. Chamberlin, 20 Idaho 504, 118 P. 1099,1100:
"The constitutional right to divert and appropriate water does not extend to private water.
"Sec. 3, art. 15 of the constitution is dealing with the water of a natural stream and provides, among other things, as follows: 'The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied,' etc. Sec. 3253 of the Rev. Codes (C. S., sec. 5569), which provides for making applications to the state engineer (department of reclamation, for permits to appropriate water, has reference to 'public waters' and 'the waters of any natural stream, spring or seepage waters or lakes, or other public waters.' Neither the statute nor the constitution ever contemplated authorizing one man to appropriate and divert the property of another. Both the constitution and statute were dealing with the public unappropriated waters of the state, as distinguished from private property."
The opinion of the writer in Public Utilities Com. v.Natatorium Co., supra, further states: *Page 387
"There is a clear distinction between the right to appropriate the waters of a subterranean stream and the right to appropriate percolating waters which form no part of a subterranean stream. Trustees etc. of the Village of Delhi v.Youmans, 50 Barb. (N.Y.) 316. I do not wish to be understood that the right to appropriate the waters of subterranean streams does not exist in this state, as well as the right to appropriate all waters of natural springs, streams or lakes. My position is that mere percolating waters or waters gathered together in wells upon the lands of the owner of the fee are not subject to appropriation by a third party, either under the constitution or statutes of this state."
Justice William A. Lee was in accord with these views, and the special concurrence of Justice McCarthy lent them support. Justice McCarthy said, in part:
"Article 15 of the constitution must be read as a whole. So reading it I conclude that section 1 thereof applies only to such waters as are public waters, owned by the state of Idaho. Considering article 15 of the above-mentioned statutes, I conclude that the ownership of water by the state, and the resulting right of appropriation, are confined to the waters of natural streams, either surface or subterranean, and do not extend to subterranean springs or percolating water, situated entirely on privately owned land, and not flowing in a natural channel. Water of the latter sort is part of the soil and belongs to the owner of the land." (Citing cases.)
I do not think it a fair interpretation of the statements of Justice McCarthy to say that he thought the principles enunciated by him would be of different application had the waters in controversy in the Natatorium case been shown to be situated underneath the land of more than a single owner and right to their use disputed as between different property owners. He simply adheres to the principle that percolating water, not flowing in a natural channel or being a subterranean stream, is not the subject of appropriation, *Page 388 owned by or under control of the state, but is considered a part of the soil and belongs to the owner of the land under which it exists.
There appears in this case to be a common supply of water in a state of percolation underlying the lands of each of the parties to the action, and possibly others — not shown to be an underground or subterranean stream. It does not constitute "waters of any natural stream" within the meaning of the Constitution, nor "waters flowing in their natural channels," within the meaning of the statute. Evidently the supply is not sufficient to meet the needs or wants of all, and under the rule of reasonable use, each has a correlative right to the use of the water upon his land to the extent of a reasonable share thereof. There is not in the record sufficient evidence from which can be determined the exact amounts to which each of the parties is entitled. Suffice it to say at this time that the trial court, having decided the issue upon the theory of the superiority of plaintiffs' rights by reason of priority in appropriation, the injunction pendente lite was erroneously granted and should be dissolved.